Final Order 1

Order Details: Chamber summons
Pdf Text: 1 C/H No.652/2018 in S.S.4726/2011
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO.652 OF 2018
(C.N.R.No. MHCC010044802018)
IN
L.C. SUIT NO. 4726 OF 2011
(C.N.R.No. MHCC010052082011)
1a Amina Jusub Khaskeli ]
1b Anish Jusub Khaskeli ]
1c Siraj Jusub Khaskeli ]
1d Imran Jusub Khaskeli ]
1e Bunty Jusub Khaskeli ]
All are residing at Bhagwati Wadi, ]
Dayaldas Road, Vile Parle (East), ]
Mumbai 400 057. ]
2a Subhash Sarju Kanu Stall No.05 ]
Mongibai Road, Vile Parle (East), ]
Mumbai 400 057. ]
2b Sushila Sarju Kanu ]
Residing at 211 Bhansali, SRA, CHS, ]
Hanuman Road, Vile Parle ]
Mumbai 400 057. ]
3 Satyaprakash Chaukatprasad, ]
Dhobi Stall No.6, ]
4 Chimanlal M. Gandhi, Stall No.8, ]
5 Ghyanshyam Keshavji Khutiya, ]
Stall No.7, ]
6 Hasmukh Virji Shah, Stall No.9, ]
7 Lakhamshi Keshavaji Khutiya, ]
Stall No.1, ]
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2 C/H No.652/2018 in S.S.4726/2011
8 Genesh Hari Burman, All at ]
Mongibai Road, Vile Parle (E), ]
Mumbai 400 057. ]..Plaintiffs.
V/s.
1 India Finance and Construction ]
Company Pvt. Ltd. Incorporated ]
under Companies Act, 1956 having ]
its registered office at Agarwal ]
Market, 27 Tejpal Road, ]
Vile Parle (East), Mumbai400 057. ]
2 Mumbai Municipal Corporation ]
through the Municipal Commissioner ]
Head Office, Mahapalika Marg, Fort, ]
Mumbai 400 001. ]
3 The Executive Engineer, Building ]
and Proposal Department, 'K' East, ]
Ward, R.K. Patkar Marg, Bandra (W),]
Mumbai 400 001. ]..Defendants.
AND
1 Smt. Meena Jusab Khaskeli ]
2 Mr. Anish Jusab Khaskeli ]
3 Mr. Siraj Jusab Khaskeli ]
4 Mr. Imran Jusab Khaskeli ]
5 Mr. Bunty Jusab Khaskeli ]
All are residing at Bhagvati Wadi, ]
Dayaldas Road, Vile Parle (East), ]
Mumbai 400 057. ]..Respondents.
Advocate Ms. Pamela Dalal for plaintiff.
Advocate Ms. Anita Trivedi for defendant no.1.
Advocate Mr. Malankar for BMC/defendant nos.2 and 3.
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3 C/H No.652/2018 in S.S.4726/2011
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.11)
DATE : 20th APRIL 2018
ORAL ORDER
This Chamber summons has been taken out by the plaintiff
to carry out the amendment in the plaint as per the schedule annexed
with the Chamber Summons along with all the consequential
amendment therein.
2 Plaintiff no.7 has filed his affidavit in support of chamber
summons. It is averred that the suit is filed for declaration that they
have become owners by adverse possession of the suit stalls. In the
present suit, at the stage of the evidence they noticed that prayer
clausec is wrongly typed. The said prayer is the final relief that is
being sought from the Court. It has been wrongly typed that “pending
the hearing and final disposal of the present suit”. In the interest of
justice and to avoid multiplicity of the proceeding the error caused by
the plaintiffs while filing the present suit, which is admittedly in the
nature of typographical mistakes needs to be corrected.
3 It is further averred that neither the nature of the suit nor
the evidence, already filed by the parties, is going to change. No
prejudice would be caused to the defendants, if this notice of motion is
allowed. Thus, prayed for allowing chamber summons.
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4 C/H No.652/2018 in S.S.4726/2011
4 Defendant no.1 has objected strongly for allowing chamber
summons. The learned advocate for defendant no.1 has argued that the
present chamber summons has been filed just to cause delay in the suit.
In view of the provisions of OrderXI Rule 17 of the Code of Civil
Procedure, the present chamber summons is not maintainable and she
has prayed for dismissal of chamber summons.
5 Defendant nos.2 and 3 have filed affidavit in reply of Sub
Engineer Mr. Shrikant Gautam Muntode. It is contended that by this
Chamber Summons, the plaintiffs want to amend the suit i.e. prayer
clause in the year 2018 when the suit is filed in the year 2011. The
plaintiffs have not given explanation for delay. The defendants have
denied that it is typing mistake. The trial in the suit is already started
and three witnesses have already been examined. The evidence of PW
nos.4 and 5 is also filed before the Court. Therefore, at this stage, the
application for amendment cannot be allowed. The proposed
amendment is contrary to the provisions of Order VI Rule 17 of the
Code of Civil Procedure. The plaintiffs are taking out such applications
without any merits with the sole intention to delay the trial of the suit,
so that the injunction order obtained will run against defendants. Thus,
prayed for dismissal of chamber summons along with the costs.
6 Heard learned advocates for the plaintiffs and defendant
nos.1 to 3 at length. In view of the provisions under Order VI Rule 17
of the Code of Civil Procedure, no application for amendment shall be
allowed after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not have raised
the matter before the commencement of trial.
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5 C/H No.652/2018 in S.S.4726/2011
7 It appears that the plaintiffs have lodged this suit on
21.04.2011. The Hon'ble High Court has issued/given directions to
dispose of the present suit till 16.09.2016 vide order dated 05.08.2014
in Appeal From Order No.160/2014. The plaintiffs are well aware the
facts. Thereafter, the Hon'ble High Court has given extension of time to
decide the present suit till 02.03.2018. In between the period, the
plaintiffs have sought time for taking steps due to death of plaintiff
no.1. Therefore, that was an occasion for the plaintiffs to go through
the pleadings in the plaint at that time.
8 Further, thereafter, the plaintiffs have adduced the
evidence of three witnesses. The evidence of the said witnesses has
been completed. Thereafter, the plaintiffs have filed evidence of two
more witnesses by way of affidavit of examination in chief. Even, the
plaintiffs have taken out notice of motion recently during the course of
evidence on 14.02.2018. Thus, since the filing of the suit and till
recording of the evidence of three witnesses, the plaintiffs have not
uttered single word in respect of alleged typographical mistake in the
plaint. Further, from record, it discloses that independently all eight
plaintiffs are separately asking for reliefs in respect of their independent
suit stall. Then the plaintiffs who have already adduced their evidence
must have know, if there is alleged typographical mistake in prayer
clause, but at that time also the plaintiffs have not filed an application
for amendment. This conduct of the plaintiffs is nothing, but they are
not diligent and just want to cause delay in the suit. In the
circumstances, filing of this chamber summons at this stage is nothing,
but again one more attempt made by the plaintiffs to cause delay in the
suit.
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6 C/H No.652/2018 in S.S.4726/2011
9 It seems from the record and proceedings that every
opportunity was there to the plaintiffs to make an application for
amendment prior to commencement of the trial and even thereafter,
immediately, it was possible for the plaintiffs to make an application
when they filed evidence of first witness. It appears that there is no due
diligence on the part of the plaintiffs and filed this application at
belated stage that too, after the commencement of the trial. Further, it
is to be noted that the plaintiffs have not stated any reason for causing
delay in filing the application, at this stage, for seeking amendment.
10 Further, it reveals that the proposed amendment is not
even as typographical mistake. It appears that at this stage, by way of
amendment, the plaintiffs are trying to seek relief of permanent
injunction against the defendants and that too, without mentioning
words as “due process of law” in the proposed amendment.
11 Thus, by way of proposed amendment, they are asking
blanket injunction against the defendants. Thus, in all conduct of the
plaintiffs by way of filing this application is nothing, but to protract the
trial on one or other reason, though it is expedited by the Hon'ble High
Court. Thus, in view of above discussion, proposed amendment at this
be lated stage, is not maintainable and accordingly, this chamber
summons is also not maintainable and liable to be dismissed. With this,
I proceed to pass the following order:.
ORDER
Chamber Summons No. 652 of 2018 is hereby dismissed
with costs.
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7 C/H No.652/2018 in S.S.4726/2011
2 Chamber Summons No.652/2018 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
City Civil Court,
Date: 20/04/2018. Gr. Bombay.
Dictated on : 20/04/2018
Transcribed on : 21/04/2018
Signed on : 23/04/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
25/04/2018 At 1.30 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.11)
Date of pronouncement of
Judgment/Order
20/04/2018
Judgment/Order signed by P.O. on 23/04/2018
Judgment/Order uploaded on 25/04/2018
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